Quebec (Attorney-General) v. Moses

Supreme Court of Canada – [2010] 1 S.C.R 557

Quebec ConsultationEnvironmental assessmentTreaties

Summary

Because of this decision, both federal and provincial environmental assessment processes must be conducted in some cases, sometimes resulting in duplication.

The Court addresses the interpretation of modern treaties such as the James Bay Northern Quebec Agreement. It concludes that since they resemble modern contracts a lot more than historical treaties, they should not be interpreted with the same liberal rules.

Issue

Does the JBNQA exempt a mining project within its territory from an independent environmental assessment inquiry by the federal government?


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Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage)

Supreme Court of Canada – [2005] 3 S.C.R. 388

Alberta ConsultationHonour of the CrownTreaties

Summary

Mikisew is a leading case in aboriginal law. The Court applied the consultation criteria established in Haïda and Taku River for the first time, here in a treaty case. The rules surrounding consultation when a treaty is involved were specified.

The honour of the Crown is omnipresent, and the duty to consult is engaged as soon as the Crown knows of a project that could harm Aboriginal peoples’ interests.

Issue

Did the Crown have a duty to consult the Mikisew Cree First Nation?


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Haida Nation v. British Columbia (Minister of Forests)

Supreme Court of Canada – [2004] 3 S.C.R. 511

British Columbia ConsultationHonour of the Crown

Summary

Haida is one of the most frequently cited cases regarding aboriginal rights.

Based on the principle of the honour of the Crown, which was elaborated by the Court, this decision affirms that the Crown must consult Aboriginals as soon as it has it has “real or constructive” knowledge “of the potential existence” of an Aboriginal right or title that may be adversely affected by the contemplated conduct.

Issue

What are the Crown’s obligations to consult and to accommodate Aboriginals when they are in the process of establishing an Aboriginal title?


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Beckman v. Little Salmon/Carmacks First Nation

Supreme Court of Canada – [2010] 3 S.C.R. 103

Yukon ConsultationHonour of the CrownTreaties

Summary

This decision defines the Crown’s duty of consultation and accommodation in the context of modern treaties. Although modern treaties may be more detailed and precise than historic treaties, the honour of the Crown can dictate that there be consultation and accommodation in the instances where rights are affected and the treaty has no procedural provision.

In this manner, “recent” treaties can “evolve” according to the applicable law in Canada. “Reconciliation in the Yukon, as elsewhere, is not an accomplished fact. It is a work in progress.” (par. 52 of the decision)

Issue

Does the Government of Yukon have a duty to consult the First Nation of Little Salmon/Carmacks pursuant to a treaty before approving the land grant of 65 hectares to a resident, Larry Paulsen? If yes, what is the scope of this obligation?


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Behn v. Moulton Contracting Ltd.

Supreme Court of Canada – 2013 SCC 26

British Columbia Aboriginal rightsAbuse of processConsultation

Summary

The Supreme Court tackles a long standing issue in aboriginal law: can Aboriginal individuals assert ancestral rights?

The Court decided that unless an individual was appointed to represent its First Nation as an ensemble in the defense of its rights, he or she can not assert a breach to the Crown’s duty to consult.

Individuals can nonetheless, in some instances, ask the government to discuss with them directly or assert their rights before the court when they have interest in an aboriginal or treaty right with an individual aspect

Issue

  1. Can the Behns, as individual members of an Aboriginal community, assert a breach of the duty to consult?
  2. Can the Behns, as individual members of an Aboriginal community, assert treaty rights?
  3. Did the Behns commit an abuse of process in contesting the legality of the licenses only as a defense to the lawsuit initiated by Moulton and not after their delivery?


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Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council

Supreme Court of Canada – [2010] 2 S.C.R. 650

British Columbia Aboriginal rightsConsultationHonour of the CrownTraditional territory

Summary

This decision confirmed that First Nations can obtain compensation for lack of consultation. Any effect on an Aboriginal right must be harmful and novel in order to trigger a duty to consult. If the resource was modified a long time ago and the government action poses no new threat, the obligation is to compensate and not to consult.

Issue

Is the British Columbia Utilities Commission (the “Commission”) required to consider the issue of consultation with the CSTC First Nations in determining whether the sale of excess power from a dam to a Crown corporation is in the public interest? Does the duty to consult apply in situations where a land claim is pending?


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Taku River Tlingit First Nation v. British Columbia

Supreme Court of Canada – [2004] 3 S.C.R. 550

British Columbia ConsultationEnvironmental assessmentHonour of the Crown

Summary

This decision was delivered on the same day as Haïda. It is one of the most referred to cases in Aboriginal peoples’ consultation and accommodation.

The Supreme Court establishes that the Crown does not have to create an independent consultation process for Aboriginals. Consultation can be included in broader environmental evaluation processes.

Issue

Did the province correctly consult and accommodate the Taku River Tlingit First Nation?


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